GEORGE WORTHEN, APPELLANT,
v.
SUSAN WORTHEN, APPELLEE

Fla. 2d DCA | 2008-09-17
No. 2D06-4695
DAVIS and KELLY, JJ., and LEVY, DAVID L., Associate Senior Judge, Concur.
991 So. 2d 400 Florida District Court of Appeal, Second District (2008) Positive Treatment
Cited by 3 cases

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Synopsis

George Worthen appealed a dissolution of marriage judgment challenging the asset distribution, alimony award, and court-ordered partition and sale of the marital residence. The appellate court affirmed the alimony and asset distribution despite missing statutory findings because the husband failed to demonstrate harmful error without a transcript, but reversed the partition and sale order because neither party requested such relief.


Holding

The omission of statutorily required findings regarding alimony and equitable distribution was not reversible error because the appellant failed to demonstrate harmful error without a transcript and made no showing of how the inadequacy harmed him. However, the trial court erred in ordering partition and sale of the marital residence when neither party requested such relief, and that portion of the judgment must be reversed and remanded.


Headnotes

[1] A party seeking reversal based on the absence of statutorily required findings of fact must demonstrate that the error resulted in a miscarriage of justice, particularly…

[2] In dissolution proceedings, a court lacks authority to partition jointly-held property absent the parties' agreement or a specific pleading requesting partition.

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Key Quotes

“in the absence of a transcript or appropriate substitute, the wife is unable to demonstrate "that the error complained of has resulted in a miscarriage of justice."”

Establishes that without a transcript, the appellant must affirmatively demonstrate harmful error from missing statutory findings to warrant reversal.

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Facts & Procedural History

George and Susan Worthen underwent dissolution of marriage proceedings. The trial court entered a final judgment distributing assets, awarding alimony…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

George Worthen, the Former Husband, challenges the distribution of assets, award of alimony, and partition and sale of the marital residence ordered in the trial court’s final judgment of dissolution of marriage. Susan Worthen, the Former Wife, has made no appearance in this appeal. The Former Husband argues that the final judgment must be reversed because it does not contain statutorily required findings of fact regarding the award of alimony and the equitable distribution of assets.1 Further, he argues that because neither party requested a partition and sale of the marital residence, the trial court erred by ordering such. We agree with the Former Husband’s argument regarding the partition and sale but affirm as to the other issues.

Although the Former Husband is correct that the final judgment did not make specific findings regarding the award of alimony or the basis of the equitable distribution, this deficiency does not necessarily amount to reversible error. This case is factually similar to Esaw v. Esaw, 965 So. 2d 1261, 1265 (Fla. 2d DCA 2007), in which this court concluded that in the absence of a transcript or appropriate substitute, the wife is unable to demonstrate “that the error complained of has resulted in a miscarriage of justice.” § 59.041.... Indeed, the wife has made no attempt to show how the inadequacy of the findings constitutes harmful error. Because the wife did not provide a transcript or appropriate substitute and did not demonstrate harmful error, we will not reverse the judgment on the basis of the wife’s claim that the findings are inadequate.

Similarly, there is no transcript in the instant record, and the Former Husband asserts that the hearing was not recorded. Additionally, the Former Husband, like the wife in Esaw, made no attempt to show how the error was harmful but rather simply argued that this court should reverse based on the absence of the findings. Accordingly, we conclude that the trial court’s error in omitting the statutorily required findings has not been shown to be harmful and that the final judgment should be affirmed as to these issues.

However, the Former Husband is correct that the trial court erred by ordering the partition and sale of the marital residence when neither party requested such relief. See Martinez v. Martinez, 573 So. 2d 37, 43 (Fla. 1st DCA 1990) (“In dissolution proceedings, the court has no authority to partition jointly-held property in the absence of the parties’ agreement or a specific pleading requesting partition.”); Zeller v. Zeller, 396 So. 2d 1177, 1178 (Fla. 4th DCA 1981) (Holding that ordering partition of the marital home absent a specific pleading requesting it was error).

As such, we reverse the portion of the trial court’s final judgment that orders the partition and sale of the marital residence, and we remand for reconsideration of the disposition of the marital home. We affirm the final judgment in all other respects.

Affirmed in part, reversed in part, and remanded.

DAVIS and KELLY, JJ., and LEVY, DAVID L., Associate Senior Judge, Concur. . See §§ 68.08, 61.075, Fla. Stat. (2006).


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Shep Harris, Jr. v. Zenoria T. McKINNEY, 20 So. 3d 400 (Fla. 2d DCA 2009)
    …uired by Rowe results in an order that is “fundamentally erroneous on its face”4 yet the failure to make findings required by statute does not render an order on alimony or equitable distribution also fundamentally erroneous. See Worthen v. Worthen, 991 So. 2d 400, 401 (Fla. 2d DCA 2008) (“Although ... the final judgment did not make specific findings regarding the award of alimony or the basis of the equitable distribution, this deficiency does not necessarily amount to reversible error.”); Esaw, 965 So. 2d…
  • Engle v. Engle, 277 So. 3d 697 (Fla. 2d DCA 2019)
    …w of the case. See, e.g., McCann v. Crumblish-McCann, 21 So. 3d 170, 171 ("Where competent, substantial evidence demonstrates need and ability to pay, we will not reverse for absence of statutory findings in the written order."); Worthen v. Worthen, 991 So. 2d 400, 401 (Fla. 2d DCA 2008) ("[T]he Former Husband . . . made no attempt to show how the error was harmful but rather simply argued that this court should reverse based - 11 - on the absence of the findings. Accordingly, we conclude that the trial co…

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